“Because no one should be behind bars for ending their own pregnancy, or for helping someone else do so.”
—If/When/How Repro Legal Defense Fund
The reproductive justice lawyers network If/When/How last week launched a nationwide Repro Legal Defense Fund (RLDF)—a first-of-its-kind resource to support women and others investigated, arrested or prosecuted for self-managed abortion. Self-managed abortion is when someone ends a pregnancy outside of a clinical setting, such as buying abortion pills online and using them without medical supervision. RLDF provides money for bail and legal representation.
“We’ve seen political attacks on clinical abortion care ramp up significantly in recent months, making it more critical than ever that we protect and defend people who self-managed abortions,” said Rafa Kidvai, If/When/How Legal Defense Fund director.
The Guttmacher Institute reports that lawmakers across 47 states introduced 561 abortion restrictions since January, including 165 abortion bans (as of June 14, 2021). A staggering 83 of those restrictions have been enacted across 16 states, including 10 bans. With increasing restrictions on abortion access, more people are turning to self-managed abortion. And while legal consequences for self-managing abortion are rare, dozens of women have been investigated and sometimes prosecuted over the last 20 years for ending a pregnancy (out of many thousands of self-managed abortions likely occurring during that time).
“Whether someone self-manages an abortion because they were unable to access clinical care, or because it was the care that felt right for them, no one should be punished for ending their own pregnancy, or helping someone else do so,” said Kidvai. “Now with Mississippi’s abortion ban directly challenging Roe v. Wade at the Supreme Court, it’s especially urgent to ensure that people who end their own pregnancies have the money they need to defend themselves against the state.”
Since 2018, If/When/How has offered a Repro Legal Helpline—a free, confidential helpline for callers to get legal information or advice about self-managed abortion. If/When/How executive director Jill Adams says that by the end of 2020, they were fielding 10 times as many inquiries as they were at the start of the year. The new Repro Legal Defense Fund expands the support offered to people self-managing their abortions.
“We fund the strongest legal defenses possible, helping individuals criminalized for self-managed abortion to avoid conviction and incarceration,” said Kidvai. “With financial assistance, they will be able to pay the fees of defense counsel, expert witnesses and consulting attorneys with specific expertise on issues that could make a significant difference in their cases.
“We will show law enforcement and abortion opponents that we stand united ready to free and defend those who get ensnared in the criminal punishment systems trap.”
The fund is also conducting a multi-year research project to track cases where people are criminally prosecuted for self-managed abortion. “In the three-month pilot phase, looking at only three states, and without direct physical access to court records, we discovered twice as many potential SMA criminal cases as we thought there were, including some that had only recently taken place. We are now representing people embroiled in three of those recently discovered cases, ” said Adams.
The Legal Landscape
“Self-managed abortion is not a crime, except in a very small number of states,” said If/When/How’s litigation counsel Yveka Pierre. Only five states have explicit criminal prohibitions of self-managed abortions: Arizona, Delaware, Nevada, Oklahoma and South Carolina. New York repealed its criminal prohibition on self-managed abortion in 2019. And while 38 states have feticide laws, most explicitly exclude pregnant women from criminal penalties.
“So why would anyone think that ending one’s own pregnancy is a crime?” asked Pierre. “Because abortion stigma creates an aura of criminality, convincing people that there’s something inherently dangerous about abortion so that it’s justifiable to regulate it, demonize people who provide care, and shame those who seek abortions. All of that contributes to people thinking that abortion should be or is something illegal and that doing one for yourself must be some kind of a crime. And that means that folks with institutional power like police, prosecutors, judges, and juries treat self-managed abortion and pregnancy loss like it’s a crime, even when it’s not.”
“Abortion stigma creates an aura of criminality, convincing people that there’s something inherently dangerous about abortion so that it’s justifiable to regulate it, demonize people who provide care, and shame those who seek abortions.”
—Yveka Pierre, If/When/How’s litigation counsel
Some overzealous prosecutors are stretching the law in order to punish people who end their pregnancies, says Pierre: “They excavate antiquated laws and misapply statutes never intended to be used against someone for ending their own pregnancy or for helping another person do so.”
For example, prosecutors in Idaho charged an unemployed mother of three, Jennie McCormick, with unlawful abortion after she used abortion pills purchased online to end a pregnancy. A judge later dismissed the charges a unconstitutional, and a federal appellate agreed.
Pierre says prosecutors target marginalized people in discriminatory ways. “Like all forms of criminalization in the United States, it affects some people more than others because of their identities, their circumstances, and where they live. Folks who already are living in a world where they’re suspected, stigmatized, and surveilled are more likely to be criminalized. There’s so much individual discretion built into every stage of the process. We know that Black Indigenous and other people of color, immigrants, young folks, trans and gender non-conforming people, and those experiencing poverty are at the most risk of criminalization for self-managed abortion.”
RLDF hopes that providing a strong legal defense to people charged with self-managing abortion will deter future prosecutions. “The hope is that as cases are won and news of the RLDF spreads, prosecutors will be discouraged from bringing new charges because it will be too politically costly. And police will be dissuaded from investigating people for self-managed abortion,” said Kidvai.
RLDF also hopes to educate health care providers about the law. Dr. Jamila Perritt, president & CEO of Physicians for Reproductive Health, says clinicians often misunderstand their legal obligations with regard to self-managed abortion.
“Certainly, there are some providers who are calling the police on patients with the deliberate intent to punish and criminalize them for having an abortion,” said Perritt. “But for others, they’re simply confused about their responsibility because many get caught up in misinterpretations or misunderstandings regarding mandatory reporting laws…Mandatory reporting laws do not apply here. There is no law that says that you as a provider must or even should report a person for suspicion of self-managing their abortion. In fact, leading medical organizations have said that this practice causes tremendous harm for the people we care for.”
In addition to litigation and public education, RDLF is seeking to change the law. “We’re repealing the remaining SMA bans, reforming laws that have or could be misused against people who end their own pregnancies or help someone else do so, and reinforcing protections to create supportive haven states where no one may be criminalized for self-managed abortion or pregnancy loss,” said Adams.
If/When/How achieved a victory last February when the American Bar Association adopted their resolution against the criminalization of self-managed abortion and pregnancy loss.
“People who have abortions, self-managed or otherwise, are not villains or wrongdoers,” says Adams. “It’s high time anti-abortion politicians, police, and prosecutors stopped treating and targeting them as such. People who end or lose their pregnancies are no different than anyone else. They’re just trying to live their lives and make the decisions that are right for them, their families, and their futures. Everyone deserves to self-determine their reproductive lives free from criminalization, free from discrimination, free from coercion, and free from violence.”
How To Get Help
For support, go to reprolegaldefensefund.org and fill out this online form. Attorneys seeking support for representing people self-managing abortion should fill out this form. The website is currently available in English, Spanish and simplified Chinese. The helpline at 844-868-2812 has interpretation services that cover nearly all languages.
To support RDLF, donate here.